Prosecutrix Was A Married Lady On The Date Of Developing Physical Relationship With Him: MP HC Quashes Case Against Man Accused Of Rape By Giving Promise To Marry
|The Madhya Pradesh High Court quashed criminal proceedings against man accused of rape by giving promise to marry.
The Court noted that a continuous physical relationship of a married woman with another man can be considered a consensual relationship.
A petition under Section 482 was filed seeking quashing of an FIR registered under Section 376(2)(n) and Section 506 of the Indian Penal Code, 1860.
The Bench of Justice Sanjay Dwivedi observed, “It is clear that the prosecutrix on the date of developing physical relations with the petitioner was a married lady and physical relations developed between them in the-then existing facts can be considered that it was consensual relationship. There was no consent obtained by the accused/petitioner on the basis of misconception of fact. Accordingly, the offence of 376 is not made out in view of the judgment of the Supreme Court. Therefore, this Court is of the considered opinion that it is fit case, in which the FIR can be quashed on the ground that if the facts mentioned in the FIR are considered to be true at their face value even though the offence of 376 is not made out because the existing facts do not fulfill the requirement of Section 375 of IPC so also the requirement of Section 90 of IPC of consent.”
Advocate Rahul Deshmukh appeared for the Petitioner whereas Addl. GP SD Vyas and Advocate Anjani Kumar Singh appeared for the Respondents.
In FIR, the Prosecutrix herself has alleged that the Petitioner, for the last 8 years, on a false promise of marriage developed physical relations and as such exploited her. She had also alleged that 8 years prior to the date of registration of FIR, she came into contact with the petitioner through Facebook and she met with the petitioner in Bhopal where he was residing. He then developed a physical relation with her giving false assurance of marriage.
The FIR also contained that the petitioner promised the prosecutrix for getting married to her after the marriage of his sister but later she came to know that the Petitioner was entering into marriage with some other girl.
The main contention of the petitioner was that in the statements under Section 161 and Section 164 of the Code of Criminal Procedure, 1973, the prosecutrix had admitted that when physical relation developed between her and the petitioner, she was married and having one child and that relationship was continued for years together and in February 2019, she got a divorce from her husband and, therefore, according to him, the conduct of the petitioner did not fall within the definition of rape and as such, case of rape was not made out.
The Court relied on the landmark judgments of the Supreme Court in Naim Ahamed Vs. State (NCT of Delhi), (2023 SC) and Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and Ors. (2019 SC).
The Court held that if a woman is engaged in sexual relations on a false promise of marriage, her consent is based on misconception of fact and that is not the consent in the eye of law and that physical relationship would amount to rape. But here in this case, the facts were altogether different because on the date of developing a physical relationship, the prosecutrix was a married lady and surrendering before the petitioner on a false promise of marriage did not fall within the definition of consent obtained on the misconception of fact, it noted.
The Court said that on the date of developing physical relations, the question of promise of marriage did not arise that too with a married lady as she continued in the relationship with the petitioner for a long period of 8 years and thereafter she got a decree of divorce from her husband.
Accordingly, the Court allowed the petition and quashed the FIR against the Petitioner.
Cause Title: Abhishek Arjariya v. State Of Madhya Pradesh & Another
Appearances:
Petitioner: Advocate Rahul Deshmukh
Respondents: Advocates Shraddha Tiwari and Vivek Agrawal.